McCoy v. Wynn
| Decision Date | 04 November 1926 |
| Docket Number | 6 Div. 451 |
| Citation | 110 So. 129,215 Ala. 172 |
| Parties | McCOY et al. v. WYNN et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Blount County; O.A. Steele, Judge.
Bill in equity by Jonas Wynn against D.O. McCoy, J.M. Bright, and U.G. Jones, and cross-bill by U.G. Jones. From the decree defendants McCoy and Bright appeal. Reversed and rendered.
Ward Nash & Fendley, of Oneonta, and A.A. Griffith, of Cullman for appellants.
Russell & Johnson, of Oneonta, for appellees.
Appellee's motion to dismiss the appeal, because the transcript was not filed in this court within 60 days after taking the appeal is without merit, and will be overruled. The appeal was taken on February 26, 1925. The first call of the Sixth division thereafter was on April 19th--less than 60 days. The transcript was filed in this court on November 23, 1925, the first day of the ensuing call of that division. This is held to be sufficient. Sloss-Sheffield Steel & Iron Co. v. Webster, 183 Ala. 323, 62 So. 764; Cudd v. Reynolds, 186 Ala. 207, 65 So. 41; Code 1923, §§ 6107, 6129; Supreme Court practice rule 41.
The equity of the bill rests entirely upon the theory of an accord and satisfaction, by which a mortgage indebtedness of about $1,700 was extinguished by complainant's payment of $1,116.20, pursuant to an agreement with the appellees as owners of the mortgage and notes.
Such a payment, in order to operate as a satisfaction of the entire indebtedness, must have been predicated upon a bona fide dispute as to the amount justly due or upon an independent valuable consideration moving to the payee, or upon a written agreement of discharge, as provided by statute (Code 1923, § 7669), or upon a surrender to the debtor of the written evidence of the debt. Abercrombie v. Goode, 187 Ala. 310, 65 So. 816; Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 So. 662; Brown v. Lowndes County, 201 Ala. 437, 78 So. 815. Otherwise the agreement to release the unpaid portion of the debt is but a nudum pactum without any legal effect.
The averments of the amended bill, as also of the original bill, show a sufficient consideration for the release of the interest accrued on the unmatured notes, viz. the payment of those notes in 1921 in advance of their several periods of maturity. The demurrer to the bill for want of equity was therefore properly overruled.
The burden was on complainant to show that the respondents Bright and McCoy made with him the agreement alleged in the bill of complaint, and that the mortgage debt was paid and satisfied by his payment to them of $1,116.20 in that behalf. We have examined the testimony and the documentary evidence with much care, and our clear conclusion is that complainant's contentions are not sustained, and ought to be rejected.
The bill contains a general prayer for relief and a general offer to do equity, but this does not suffice to give it equity and standing as a bill for redemption. Fid. & Dep. Co. v. Richeson, 213 Ala. 461, 105 So. 193. It results that the decree of the circuit court granting relief on the original bill, as amended, must be reversed, and a decree be here rendered dismissing the bill.
The trial court erred also in granting relief to the respondent U.G. Jones on his cross-bill against Bright and McCoy. The theory that the mortgage...
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Hamrick v. Town of Albertville, 8 Div. 404.
...... discontinued. The motion to dismiss the appeal has been. examined on the facts indicated, and is overruled. McCoy. v. Wynn, 215 Ala. 172, 110 So. 129. . . There. is a motion to strike the bill of exceptions or certain. portions thereof. The rule ......
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State for Use of Russell County v. Fourth Nat. Bank of Columbus, Ga.
...was on file and the cause ready for submission on the merits at the first call of the division from which the appeal came. McCoy v. Wynn, 215 Ala. 172, 110 So. 129; Hinson v. Cook, 241 Ala. 70, 1 So.2d 33; Collins v. Thompson, 259 Ala. 82, 65 So.2d 491; Franks v. City of Jasper, 259 Ala. 64......
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Franks v. City of Jasper
...of the first call of the Sixth Division held more than sixty days after the appeal was taken. In the case of McCoy v. Wynn, 215 Ala. 172, 173, 110 So. 129, 130, we held a motion to dismiss the appeal to be without merit under circumstances similar to those of the present case. It was said i......
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Homewood Dairy Products Co. v. Robinson
...that it is in full of it is given and received, a further writing or a new consideration would not be necessary. See McCoy v. Wynn, 215 Ala. 172, 110 So. 129; Ex parte Southern Cotton Oil Co., supra. They do not conflict, since they were decided prior to the adoption of section 4, Title 9, ......